NJ LAWS EMAIL NEWSLETTER E453

Kenneth Vercammen, Attorney at Law

October 15, 2014

E453

1. What is Hazing in NJ?

2. What is rape in NJ and sexual assault in NJ?

3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4

1.What is Hazing in NJ?

2C:40-3. Hazing ; aggravated hazing

a. A person is guilty of hazing a disorderly persons offense, if, in connection with initiation of applicants to or members of a student or fraternal organization, he knowingly or recklessly organizes, promotes, facilitates or engages in any conduct, other than competitive athletic events, which places or may place another person in danger of bodily injury.

b. A person is guilty of aggravated hazing a crime of the fourth degree, if he commits an act prohibited in subsection a. which results in serious bodily injury to another person.

2C:40-4. Consent not available as defense to hazing

a. Notwithstanding any other provision of Title 2C of the New Jersey Statutes to the contrary, consent shall not be available as a defense to a prosecution under this Act.

b. More information on website www.njlaws.com

2. What is rape in NJ and sexual assault in NJ 2C:14-2?

New Jersey calls rape a sexual assault. Below are the NJ statutes on sexual assault. Below are the NJ statutes on sexual assault

2C:14-2 Sexual

Assault

a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The victim is less than 13 years old;

(2) The victim is at least 13 but less than 16 years old; and

(a) The actor is related to the victim by blood or affinity to the third degree, or

(b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status, or

(c)The actor is a resource family parent, a guardian, or stands in loco parentis within the household;

(3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;

(4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;

(5) The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion;

(6) The actor uses physical force or coercion and severe personal injury is sustained by the victim;

(7) The victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent.

b. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1)The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

2C:14-1 Definitions in sexual assault cases.

2C:14-1. Definitions. The following definitions apply to this chapter:

a. "Actor" means a person accused of an offense proscribed under this act;

b. "Victim" means a person alleging to have been subjected to offenses proscribed by this act;

c. "Sexual penetration" means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. The depth of insertion shall not be relevant as to the question of commission of the crime;

d. "Sexual contact" means an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present;

e. "Intimate parts" means the following body parts: sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person;

f. "Severe personal injury" means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain;

g. "Physically helpless" means that condition in which a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act;

h. (Deleted by amendment, P.L.2011, c.232)

i. "Mentally incapacitated" means that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of appraising or controlling his conduct;

j. "Coercion" as used in this chapter shall refer to those acts which are defined as criminal coercion in section 2C:13-5(1), (2), (3), (4), (6). and (7), amended 1983, c.249, s.1; 1989, c.228, s.2; 2011, c.232, s.3.

Indictable Criminal Penalties [Felony type] [ Superior Court]

Jail potential Fine max Probation

1st degree 10- 20 years $200,000 [presumption of jail]

2nd degree 5-10 years $150,000 [presumption of jail]

3rd degree 3- 5 years $15,000 1 year- 5 year

4th degree 0- 18 months $10,000 1 year- 5 year

There are many other penalties that the court must impose in criminal case. There are dozens of other penalties a court can impose, depending on the type of matter. Readwww.njlaws.com/jail_for_crimes_and_disorderly_conduct.html

Sayreville football player also charged with 2C:33-1. Riot

a. Riot. A person is guilty of riot if he participates with four or more others in a course of disorderly conduct as defined in section 2C:33-2a:

(1) With purpose to commit or facilitate the commission of a crime;

(2) With purpose to prevent or coerce official action; or

(3) When he or any other participant, known to him, uses or plans to use a firearm or other deadly weapon.

Riot, if committed under circumstances set forth in paragraph (3) is a crime of the third degree. Otherwise, riot is a crime of the fourth degree.

b. Failure of disorderly persons to disperse upon official order. Where five or more persons are participating in a course of disorderly conduct as defined in section 2C:33-2 a. likely to cause substantial harm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a disorderly persons offense.

2C:13-2. Criminal Restraint

A person commits a crime of the third degree if he knowingly:

a. Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury; or

b. Holds another in a condition of involuntary servitude.

The creation by the actor of circumstances resulting in a belief by another that he must remain in a particular location shall for purposes of this section be deemed to be a holding in a condition of involuntary servitude. In any prosecution under subsection b., it is an affirmative defense that the person held was a child less than 18 years old and the actor was a relative or legal guardian of such child and his sole purpose was to assume control of such child.

3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4

State

v. WARDELL HARVEY

A-2921-12T1

The State was prohibited by its conduct in municipal court from arguing in the Law Division that the evidence supported a conviction based on defendant's intent to drive from the office, and that the undisputed evidence would not support a conviction on that basis in any event. Because the Law Division determined that there was insufficient evidence to convict defendant under the only theory properly before it, namely that defendant drank en route to his doctor's appointment, that ruling was an adjudication on the merits of the charge entitling defendant to an acquittal. Accordingly, we reverse defendant's conviction and remand to the Law Division for entry of a judgment of acquittal.

Reversed.

full opinion: STATE OF NEW JERSEY,

Plaintiff-Respondent,

State

WARDELL HARVEY,

Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

September 9, 2014

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, Municipal Appeal No. 37-12.

DLA Piper LLP, attorneys (Michael L. Burns, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following trial de novo on the record of the Northfield Municipal Court, the Law Division judge found defendant Wardell Harvey guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and sentenced him as a third-time offender to pay a $1006 fine, $33 in court costs, a $50 VCCB assessment, a $200 DWI surcharge, and a $75 SNSF assessment. In addition, the judge revoked defendant's driver's license for ten years, required him to serve 180 days in the county jail, 90 of which could be served in a rehabilitation facility, and required him to install an ignition interlock device for a period of one year post restoration. Having reviewed the record and the applicable law, we determine that the procedure employed in the Law Division violated defendant's rights to procedural due process and fundamental fairness, and that defendant is entitled to an acquittal.

Because our focus is first on the procedure employed in the municipal court, we relate the proceedings there in some detail. At the start of trial, the judge asked counsel "what order they would like to take the testimony." Defense counsel responded that she and the prosecutor had agreed that the defense "would put [its] testimony on first" and "do the stipulations afterwards." Defendant testified and called one witness, Officer Clerico.

Defendant testified that on the day he was arrested, he had a doctor's appointment at 12:30 p.m. in Somers Point. Defendant was going to the doctor to find out whether he needed back surgery. According to him, he stopped on the way, in Egg Harbor Township, to buy five twenty-four ounce cans of beer, which he placed behind the back seat in the pick-up truck he was driving. After stopping at the liquor store, but before arriving at the doctor's office, he was stopped in Somers Point by Officer Clerico, who wrote him two tickets. Running late after the traffic stop and nervous about the discussion he was about to have with his doctor, defendant testified that "he sat out in the [doctor's parking] lot, I settled myself down, and opened up a can of beer." According to defendant, he "chuck[ed] one down" and opened another, which he drank "a good bit of" before getting out of the truck. He crushed the empty can and threw it in the trash on his way into the doctor's office. He left the unfinished can in the truck.

Defendant testified that on leaving his appointment, he was stopped by two officers who asked him questions about the truck. Defendant testified that he told the officers that he drove the truck to his appointment, "that it wasn't my vehicle, [and] that I was waiting for somebody to pick me up." He told them the truck belonged to Ms. Bowen who worked at Linwood Convalescent Center across the parking lot from defendant's doctor. As he started to explain that Ms. Bowen let him borrow the truck to go to his doctor's appointment, the prosecutor objected, stating "It's irrelevant. The issue here is operation. That's the only issue the 104 hearing¹ is dealing with. Not who owned the car, not, you know where she worked or anything else. Operation of the motor vehicle, that's it."

Defense counsel responded that she was not trying to elicit information about ownership but instead, what defendant had done with the keys and the car and why. Eventually conceding that "[i]t's not really relevant" to operation, defense counsel concluded her questions after establishing that the officers observed the open container in the truck, administered sobriety tests and arrested defendant. On cross-examination, defendant acknowledged that he had admitted to the officers that he had been drinking but insisted he told the officers he drank in the parking lot. He denied that he consumed any alcohol while driving to his doctor's appointment.

Officer Clerico, a sixteen-year veteran of the Somers Point Police Department, testified that he was running stationary radar when he timed defendant traveling fifty miles per hour in a twenty-five mile zone. He then watched as defendant made an illegal left turn. The officer testified that as defendant handed over his credentials, he told the officer that he "was running late for a doctor's appointment." Officer Clerico did not notice an odor of alcohol about defendant or observe any open containers in the truck. He testified that he observed nothing to indicate that defendant had been drinking. According to the officer, the stop occurred at 12:20 p.m.

After presenting these two witnesses, defense counsel advised the judge that she rested her case. The judge then asked counsel "just how we intend to proceed from this point forward and what you want me to decide." The prosecutor responded that "this is a 104 hearing with regard to operation. The State's going to present its witness, Officer Cunningham, with regard to operation. And then it's my understanding that we are requesting a ruling on the 104 hearing for operation at that point in time, and then we'll proceed from there." The judge responded, "All right. Operation being one of the elements of the DWI matter[,] [i]t can be tried in a 104 hearing."

Officer Cunningham testified, without objection, that he was dispatched to the doctor's office in response to a call from someone on the doctor's staff. The caller advised the police that one of their patients appeared highly intoxicated and was preparing to leave the office. The officer testified that the staff was "trying to hold him up with his paperwork . . . because he was gonna drive home." Upon arriving at the office, the officer observed a pick-up truck that matched the description of the truck the police had been told defendant "was driving." The officer testified that the windows were down, the doors unlocked, and he could see the keys in the ignition, an open beer can in the cup holder and two tickets on the front seat.

Approaching defendant inside the building as he was leaving the doctor's office, the officer smelled alcohol and noted defendant's slow movements and slurred speech. Defendant admitted that he had been drinking, telling the officer that he drank beer "after [he] was pulled over by Somers Point police." Officer Cunningham testified that he interpreted that statement to mean that defendant was drinking beer while driving to his appointment. According to the officer, he asked defendant whether he had anything to drink after parking the truck in the lot, which defendant denied. When defense counsel asked the officer on cross-examination whether he was sure he had asked defendant whether he had anything to drink after he parked, the officer responded:

Well, parked and parked after, I mean, you're parked, you're stopped. So I mean – I could go back and give you – [defense counsel interrupts to ask again whether the officer is sure that he asked defendant whether he consumed the alcohol after he parked the truck] . . . . Right, I asked him if he had consumed alcohol, and then I asked him if he consumed alcohol after the fact. He said yes, he consumed alcohol after he was stopped, and no, he didn't consume any alcohol after he was stopped."

The officer also acknowledged that after admitting that he had been drinking, defendant further asserted that he had done nothing wrong.

The judge began argument by framing the issue of the "admissibility of the operation evidence" by stating that the defense did not want the testimony admitted and the prosecutor "wants it to be admitted. Am I right?" Defense counsel argued that defendant had established "reliable, credible evidence of a "glove box defense" under State v. Snyder, 337 N.J. Super 59, 61 n.1 (App. Div. 2001) (explaining the term as referring to a defendant's assertion of post-operation alcohol consumption). The prosecutor agreed that Snyder was controlling and argued that the State had met its burden of establishing operation in accordance with its dictates.

The judge stated:

All right. So what's before the Court now is a Rule 104 hearing as to whether the State's evidence of operation can be suppressed, whether the State's met its burden of . . . its proffer of that evidence which it would do at trial, which it did – which is more probably than not. When they go to trial they're going to have to use it and prove that it's beyond a reasonable doubt.

I'm satisfied the State's met their burden that they have adequate evidence of operation that they can tie, if the Court believes their story at trial, to this defendant. And even though there's a dispute in the testimony, the dispute I'll resolve, if it's part of the trial decision, I'll resolve it beyond a reasonable doubt. But now they have that evidence. I can't preclude [defendant's] testimony from being considered at trial, but I'm going to say that they've met their burden to offer up the evidence of operation, it's before the Court. I'm not certain whether there will be any other testimony at trial. But let me decide the Rule 104 part. The State has put forth sufficient evidence of operation to make it part of their case, and they can't be precluded from using it.

After the judge issued his ruling, defense counsel asked if the court would "rule on the operation issue, the glove box defense, on the standard of proof for a trial," using the same evidence. In response to the judge's question, the prosecutor confirmed that the State would offer nothing further on "operation as it may be affected by post operation drinking."

The judge noted that the ticket put the time of defendant's arrest at 2:50 p.m. Reviewing the officer's testimony, the judge concluded that Officer Cunningham "testified very clearly in a series of questions presented by the State's prosecutor as to what was reported to him. And the questions that dealt with what was reported to him that bear on the subsequent drinking defense all indicate that he received no information about subsequent drinking." The judge found that the "Somers Point officer is really not helpful either way for either party" because

[h]e related a motor vehicle stop that occurred at a particular time which was well before. And there's nothing in that officer's testimony that gives us any clue about what happened immediately after that or what happened all the way down to the time of the motor vehicle apprehension made by Officer Cunningham.

Referring to Snyder, the judge stated:

[I]t says that if the only evidence of the post operation consumption of alcohol comes from the defendant's uncorroborated testimony at trial, the court can decide whether it's believable or unbelievable. And in deciding this, I decide that it is unbelievable, at least to the extent that it does not overcome the State's proofs on the issue of immediate operation before the motor vehicle investigation and apprehension conducted by Officer Cunningham.² And therefore, I would admit all of the State's testimony and consider it to be establishing the element of operation beyond a reasonable doubt.

The judge then took defendant's plea, subject to the condition that the court's ruling "insofar as operation and the State v. Snyder defense not be overturned." After explaining to defendant that his "rights are protected as to the things you contest" the judge accepted the State's offer of proof as to defendant's failure to perform the sobriety tests and his Alcotest reading of .14. Without admitting operation, defendant provided a factual basis for his guilty plea by admitting that he had been drinking prior to his arrest, that he was exhibiting signs of intoxication, that he failed to perform the sobriety tests and that he achieved a .14 reading on a properly administered Alcotest.

On de novo review in the Law Division, the State argued that it had "defendant coming and going." The prosecutor, who had not appeared in municipal court, contended that defendant admitted to the arresting officer that he drank beer after being pulled over in Somers Point but denied that he drank in the parking lot, leading inexorably to the conclusion that he drank the beer en route to the doctor's office. The prosecutor further submitted that the State proved beyond a reasonable doubt defendant's intent to operate his vehicle upon leaving the doctor's office based on the staff's call to the police that defendant was drunk and intended to drive home and the key found in the truck's ignition.

Defense counsel noted that the undisputed testimony was that defendant drank almost two twenty-four ounce cans of beer between when he was stopped at 12:20 p.m. in Somers Point and when he entered his doctor's office in Linwood for a 12:30 p.m. appointment. He argued that "the only logical conclusion that can be drawn from the physical evidence of the case given the distance between where he was stopped and the timing of the matter and the amount of beer that is at issue here is that he consumed that beer in the parking lot." As to defendant's intent to drive after his appointment, defense counsel argued that had not been the focus of the municipal court hearing because the State "bas[ed] their case on his prior operation." Defense counsel argued that defendant testified he did not intend to drive but to ride home with the owner of the truck who worked across the parking lot. When the judge expressed skepticism about the extent of that testimony and defendant's credibility, defense counsel offered that the owner of the truck was in court and available to testify.

The Law Division judge, although stating that he "believe[d] that [defendant] drank while he was driving from Somers Point to Linwood," was "not convinced that that in and of itself is driving while intoxicated, but it clearly supports the open container and I'm also satisfied that [defendant] drank some more in the parking lot or maybe he wanted to get into the doctors so fast, he left a little bit of beer in the bottle."³

Determining that he was not bound by what the prosecutor's "theory was or what the [municipal] judge did," the Law Division judge concluded the evidence was insufficient to support a conviction based on defendant's conduct before arriving at his doctor's office but would support a conviction based on the State having established defendant's intent to drive home. The judge found that "people in the doctor's office were concerned that [defendant] was intoxicated and they were concerned that he was going to drive home. Relying on State v. Mulcahy, 107 N.J. 467, 480 (1987), the judge found that the State had established defendant's intent to drive upon leaving the doctor's office, and that the officers did not "have to wait for [defendant] to put everybody in danger, speed off and be driving while drunk" before arresting him.

The judge explained that the officers

nipped it in the bud and I'm satisfied that at no time did he say to them, which I believe he would have, wait a second[,] I'm not going to drive this car. I'm going across the street. He didn't say that. He said that at trial, but he never told the police officer that. . . . And, therefore, I assume that was never his intent at all. That was the defense later on. It was clearly made up, which I do not believe and I don't believe [defendant's] testimony.

Defendant raises the following issues on appeal:

POINT I THE STATE FAILED TO PROVE THAT DEFENDANT INTENDED TO OPERATE A VEHICLE BECAUSE DEFENDANT MADE NO PHYSICAL MOVEMENTS TO PUT THE CAR IN MOTION AND THE STATE'S EVIDENCE WAS NOT CREDIBLE.

POINT II EVEN IF THE STATE MET ITS BURDEN TO SHOW INTENT TO OPERATE, THE SUPERIOR COURT SHOULD HAVE REMANDED THE CASE TO ALLOW DEFENDANT TO OFFER A DEFENSE.

POINT III EVEN IF THE STATE MET ITS BURDEN TO SHOW INTENT TO OPERATE, THE SUPERIOR COURT SHOULD HAVE AFFORDED DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS GUILTY PLEA WHEN IT FOUND THAT THE STATE FAILED TO PROVE THAT DEFENDANT WAS INTOXICATED WHILE DRIVING.

On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division—not the municipal court. Id. at 162.

As we understand what occurred here, the municipal judge, relying on testimony taken in a 104 hearing, determined that the State proved operation under N.J.S.A. 39:4-50, based on Officer Cunningham's testimony that defendant admitted drinking en route to his doctor's appointment. See State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005). Preserving that issue for appeal, defendant then entered a conditional guilty plea in which he admitted, for purposes of the plea, evidence of inebriation and an Alcotest-measured blood alcohol content of 0.14%. On de novo review, the Law Division judge determined that he was not bound by the findings of the municipal judge but could convict on a different theory. Defendant was convicted, not on the basis of drinking en route to his appointment, but, on the State's proof of defendant's intent to drive home from the appointment more than two hours later.

We begin our analysis by noting the irregular procedure employed in the municipal court. Leaving aside the general confusion created by the failure of the municipal court and counsel to agree on how the matter would proceed at the outset, we can discern no basis for a 104 hearing on this record. Contrary to the comments made by the municipal judge, defendant was not seeking to suppress his statements to the arresting officer, nor did he assert that the officer lacked probable cause to arrest him for driving under the influence. No other basis for a 104 hearing even suggests itself.

We see no reason why the parties should not have tried the disputed issue of operation and stipulated, if that was their desire, to lawful administration of the Alcotest and the resulting per se reading. Conducting a 104 hearing was error. As we have recently observed, a 104 hearing and a trial are different proceedings "designed to determine discrete issues and are governed by different rules." State v. Gibson, 429 N.J. Super. 456, 465 (App. Div.) certif. granted, 215 N.J. 488 (2013). The standards of proof differ and the Rules of Evidence are largely inapplicable in a 104 hearing. Id. at 465-66. Here, the 104 hearing improperly injected unnecessary confusion into the proceedings in the municipal court and admitted into the record evidence, patently inadmissible at trial, leading to error in the Law Division.

Officer Cunningham testified at the 104 hearing that he was dispatched to the doctor's office in response to a call from someone on the doctor's staff that defendant appeared highly intoxicated and was "gonna drive home." Defendant made no objection to that testimony, which was not relevant to the issue before the municipal court, namely, whether defendant drank en route to the doctor's office or after he parked the pick-up truck in the parking lot.

That testimony, however, became relevant when the State advanced its alternate theory of operation before the Law Division. Indeed, the Law Division judge relied on it in finding that the State proved defendant's intent to drive away from the doctor's office. The testimony was undoubtedly hearsay and would clearly appear to run afoul of State v. Bankston, 63 N.J. 263, 268-69 (1973) (holding that when a police officer repeats what some other person told him concerning the crime by the accused the testimony violates the hearsay rule and the accused's Sixth Amendment rights under the Confrontation Clause). Whether defendant would have objected to the testimony had he been on notice of the State's intent to prove operation after defendant left the doctor's office cannot be known.

What is certain, however, is that the Law Division judge rejected defendant's attempt to counter those proofs with the truncated testimony in the municipal court that he had arranged for someone else to drive him home and his offer to have that person testify in the Law Division.⁴ That is the basis of defendant's contention that he was convicted on an incomplete record in the municipal court. The law is firmly established that a drunk-driving prosecution in municipal court is a quasi-criminal proceeding in which a defendant is entitled to due process of law. State v. Garthe, 145 N.J. 1, 8 (1996). Defendant is entitled to "have adequate notice and opportunity to know the State's evidence and to present evidence in argument and response." Ibid.

Although it was defendant who asked to present his witnesses before the State put on its case, the record makes plain that it was the prosecutor who objected to defendant testifying that he did not intend to drive home after his appointment. The prosecutor claimed the evidence was irrelevant because the State was limiting its proofs to defendant having consumed the beer while driving to his doctor's office. With that understanding, defendant abandoned the effort to present testimony to counter a theory the State was not advancing, that defendant intended to drive home.

Under these circumstances, the State's new argument in the Law Division, that the evidence also supported a conviction based on defendant's intent to drive from the office, an argument adopted by the judge, deprived defendant the opportunity to present a defense to that charge. It is simply fundamentally unfair for the State to commit itself in municipal court to proving operation based solely on defendant having driven to his doctor's office, succeed in limiting the defense to that theory, and then assert in the Law Division that the evidence it presented in municipal court also supported a conviction based on defendant's intent to drive away from the office over two hours later. See Mulcahy, supra, 107 N.J. at 481-83 (resolving the "troublesome question" of whether defendant was fairly apprised of charge of driving drunk to a tavern, when the summons was issued two hours later when the defendant attempted to drive away, on the basis of defendant's stipulation in municipal court, making the time of operation irrelevant); id. at 486-87 (Clifford J. dissenting).

Further, the law is clear that the State could not prove defendant's intent to operate his truck based on the officer's encounter with defendant while he was still inside his doctor's office, the functional equivalent of the defendant who "gets off the bar stool" in Justice Clifford's dissent in Mulcahy. Id. at 486. The Mulcahy Court's opinion is clear that

in order for an officer to require a driver to submit to a breathalyzer test, the officer must have probable cause to believe that operation has occurred or presently is occurring. This decision does not give license to require persons to submit to breath tests because of the probable [b]elief that they will operate a motor vehicle at some time in the near future.

[Id. at 480-81.]

Accordingly, Mulcahy provides no support for the Law Division's finding of operation based on defendant's intent to drive home, even were that issue properly before that court.

The State contends that we should affirm defendant's conviction on yet another alternate basis, that being defendant's per se violation of N.J.S.A. 39:4-50. See State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002) (noting that appellate courts affirm or reverse judgments and orders not reasons, citing Isko v. Planning Bd. of the Twp. of Livingston, 51 N.J. 162, 175 (1968)). Specifically, the State contends that both the municipal court and the Law Division found that defendant had been drinking en route to his doctor's appointment, a finding to which we should defer under the two-court rule. See State v. Locurto, 157 N.J. 463, 474 (1999). The State argues that the Law Division erred in failing to find defendant guilty of a per se violation of N.J.S.A. 39:4-50 based on that finding and the results of the Alcotest administered two and one-half hours later. State v. Tischio, 107 N.J. 504, 506 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed.2d 855 (1988).

We agree that the Law Division erred in concluding that proof that defendant drank while driving to his doctor's office would not "in and of itself" establish his intoxication in light of his 0.14 Alcotest reading. Indeed, that is the precise holding of Tischio.⁵ Ibid. ("We now hold that a defendant may be convicted under N.J.S.A. 39:4-50(a) when a breathalyzer test that is administered within a reasonable time after the defendant was actually driving his vehicle reveals a blood-alcohol level of at least 0.10%.") We, however, are not free to affirm on that basis.

The Law Division judge, erroneously in our view, determined that there was insufficient evidence to convict defendant of driving under the influence en route to his doctor's appointment. The judge made that ruling notwithstanding his belief "that [defendant] drank while he was driving from Somers Point to Linwood." That ruling was an adjudication on the merits and operated as an acquittal of defendant on the charge of driving under the influence en route to his appointment which the State may not appeal. See State v. Cuneo, 275 N.J. Super. 16, 21-22 (App. Div. 1994) (noting that "[e]ven if the trial judge 'misconstrues' the law and 'misunderstands the proofs and the State's theory of criminal liability,' the disposition is 'an adjudication on the merits' and is not appealable by the State," citing State v. Collette, 257 N.J. Super. 557, 562-63 (App. Div. 1992), certif. denied, 133 N.J. 430 (1993)).

In sum, we conclude that the State was prohibited by its conduct in municipal court from arguing in the Law Division that the evidence supported a conviction based on defendant's intent to drive from the office, and that the undisputed evidence would not support a conviction on that basis in any event. Because the Law Division determined that there was insufficient evidence to convict defendant under the only theory properly before it, namely that defendant drank en route to his doctor's appointment, that ruling was an adjudication on the merits of the charge entitling defendant to an acquittal. Accordingly, we reverse defendant's conviction and remand to the Law Division for entry of a judgment of acquittal.

Reversed.

1^_ This is the first reference in the record that the proceeding was a N.J.R.E. 104 hearing and not a trial.

2^_ Defendant, of course, did not need to "overcome the State's proofs" but only raise a reasonable doubt about them.

3^_ During the colloquy, the judge stated:

I'm not totally satisfied with the manner in the way this trial was held by the attorneys. But my reading of it is the issue comes down to one thing. When he was leaving the doctor's office, did he intend to drive the car? I agree with [defense counsel], probably not enough evidence to establish operation while drinking or while he was drunk on the way because, quite frankly, if he drank a beer, he probably wasn't drunk.

. . . .

So I discount all of it. I think the only issue that I could find him guilty, if I do so, and a lot of these questions are devil's advocate type questions, was when he was leaving the doctor's office, no matter where he was standing, where the police stopped him, was it his intent to walk over to his car, get in it and drive away?

4^_ Although the judge rejected defendant's offer by noting that the court does not "take testimony in a municipal court appeal," Rule 3:23-8 allows the Law Division to do so when the municipal court erred in excluding testimony offered by the defendant.

R. 3:23-8(a)(2).

5^_ Our disposition of the appeal makes it unnecessary to consider defendant's argument that Tischio does not apply because of the Law Division's arguable finding that defendant drank in the parking lot as well as en route to his doctor's office. See Tischio, 107 N.J. at 509 (quoting the Appellate Division's finding that N.J.S.A. 39:4-50(a) is violated whenever an established test produces a reading over the statutory limit at any time after operation "so long as there has been no ingestion of alcohol between the time of operation and the time of testing").

Criminal Law- Recent Cases NJ Kenneth Vercammen Law Office. 732-572-0500 Edison, NJ

Friday, October 31, 2014

State v. Bruce E. Lige (A-15-13; 072327)

In the Matter of Neil M. Cohen, an Attorney at Law (D-50-13;

Thursday, October 30, 2014

Michaels Supervising chemist can testify in vehicular homicide if they i...

Friday, October 24, 2014

State v Lamb

E453 1. What is Hazing in NJ? 2. What is rape in NJ and sexual assault in NJ? 3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4

Sunday, October 19, 2014

State v. WARDELL HARVEY A-2921-12T1

A-2921-12T1

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